Some Considerations and Perspectives*
Mümtaz SOYSAL
This papsr, prepared for the purpose of contributing to a regional discussion, will endeavour, alvvays in the Turkish con-text, to express some general views on four distinet aspects of the topic: priorities, international instruments, the teaching of hu-man rights and possibilities of regional cooperation.
I. The Problem of Priorities
No other gathering can be as appropriete as this regional meeting to elaborate the composite nature of the "Turkish ap-proach" to the question of human rights.
Here, at this crossroads of civilizations, it is very easy to juxtapose various approaches, to underline the differences, to stress the confrontatı'ons and to conclude by saying that the sub-ject of human rights will remain a source of eternal and insoluble conflict. Because, our part of the world, with its very wide spec-trum of regimes and ideologies, seems to lack the cohesiveness that one basically finds, for instance, in Western or Eastern Eu-rope, North or South America or South Asia vvhere one can speak at least of common traditions and historically shared ex-periences.
But this puzzling variety of approaches in our region should not necessarily lead to a gloomy conclusion. Perhaps the co-existence of so many different approaches may provide the pos-sibility of working tovvards a synthesis which would be univer-sally interesting, if not univeruniver-sally valid.
* Presented at the International Colloquy on Human Rights,istanbul, 28-30 March, 1979 organized by the Human Rights Center of the Faculty of Political Science of the University of Ankara.
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It is in the context of this attempt towards a synthesis of the various approaches that the Turkish approach to the problem of priorities in human rights deserves a particular attention.
a) The Constitutional Framework
The Turkish Constitution of 1961 follows Jellinek's well-known categories which have become classical in enumeratirıg the rights and liberties of citizens in any state; rights of negative status (freedom of expression, of belief, privacy of personel life, inviolability of residence, ete.); rights of positive status (right to education, right to medical care, social security, ete.); rights of aetive status (eleetrotal rights, military service, ete.).
Although seemingly put on an equal footing, these three categories of rights do not enjoy the same constitutional protec-tion: one of the articles of the Constitution, Article 53, stipu-lates that "The State shall carry outits duties to attain the social and economic goals provided in this Section (i.e. the Section on Social and Economic Rights and Duties) only insofar as eco-nomic development and financial resources permit." This rele-gates the economic and social rights of the citizen into a secon-dary position as compared with the first and tlıird categories rights. In fact, "the rights and duties of the individual" and "the political rights and duties" are ali proteeted by an elaborate sys-tem of judicial review through a Constitutional Court whereas most of the rights in the second category are almost completely dependent on political assessments of the allowance made by the economic development and financial resources" of the country.
b) The Realities
Even in the spheres of "the rights and duties of the indivi-dual" and of "the political rights and duties", much remains to be done in spite of the detailed constitutional provisions and the judicial machinery created for their proteetion: The Penal Code stili contains articles limiting the freedom of expression and the right of organized political action; the rights of habeas corpus and proteetion from arbitrary detention are not alvvays fully respected; there are frequent allegations of physically rough treatment at poliçe stations, ete.
On the other hand, even without the constitutional "licence" made for the economic and social rights, it is obvious that in a country where the eocnomy is stili experiencing the difficulties of a painful stage of transition, the material proteetion of the in-dividual is bound to remain below the standards of a developed vvelfare state: not ali Turks are provided with fully free medical care or education; a great number of them are stili deprived of the benefits of a social secrrity system; housing and nutrition leave much to be desired, ete.
c) The Guararıtees for the Future
What is then the originality and value of the Turkish ap-proach ?
It consists of a bold attempt to introduce the full list of liber-ties and rights and the checks and balances of highly industrial-ized and sophisticated societies to a country vvhere economic and social conditions would have, on the contrary, called forashort-er list and more streamlined and authoritarian forms of political organization: an extensive constitutional list of rights and liber-ties, combining, as has already bsen said, the principles of the liberal tradition with the prerequisities of a modern welfare state, an electoral system based on proportional representation, bica-meralism and a strict system of judicial review on ali legıslatıve and executive aetions.
"A luxury", one would instinetively say, "for a society stili semi-industrialized, semi-urban and semi-educated1"
And in fact many have said so.
What has been the result of tlns seemıngly artıfcial iınplan-tation? The answer is today's "Turkish miracle".
Miracle, because in an^ other country with the same level of economic and social development (or rather underdevelop-ment), with the same rate of inflation and political violence, the system would have collapsed long ago. But in Turkey it stili continues to funetion, in a wishy-washy fashion perhaps and so-metimes in an atmosphere of suspence, in spite of several at-tempts to changs its nature. Because, the so-called "luxuries" have created, and proteeted, in the process, a certain form of
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rudimentary pluralism vvhich has basically prevented acomplete erosion of fundamental rights and liberties.
For instance, the Turkish trade-unionism, created by a cer-tain constitutionalist implantation of such riahts as collective bargaining, strike, ete., and encouraged by constitutional provi-sions for social security, ete., has in turn acted as a strong deter-rent against attempts to distort the constitutional order. Orga-nized labour is today perhaps the strongest guarantor of a sys-tem of which it shares the dividents and in vvhich it has so much at stake.
This is a clear example of the "linkage" betvveen the cate-gories af the so-called liberal or classical liberties and the eco-nomic and social rights of modern times. The Turkish approach has shown that human rights can only be guaranteed by an in-tricate netvvork of proteetion covering ali spheres of life.
It is therefore difficult to talk of priorities. The temptation to oppose civil and political rights, on the one hand, to economic, social and cultural rights, on the other, has alvvays been haunting the minds in Turkey as elsewhere. But this is a false confrontation and the temptation must be resisted. Often the two categories complement and protect one another. It seems that the Turkish society has reached a stage where the masses realize that they are less likely to have their material needs met if they cannot make tlıeir voices heard through well-protected political and civil rights. They also realize that these rights of theirs are in danger of being hampered if they cannot influence the course of events by the sheer weight of their numbers through organized indust-rial action under the constitutional proteetion of their economic and social rights.
II International Instruments and Turkey
The list of international instruments on human rights signed and ratified by Turkey comprise the following:
— Conveııtion on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 (entered into force 12 January 1951);
— Slavery Convention signed at Geneva, 25 September 1926, as amended by the Protocol of 7 December 1953, (entered into force 7 July 1955);
— Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institi'tions and Practices similar to Slavery, 7 September 1956, (entered into force 30 April 1957);
— ILO Convention concerning the Abolition of Forced Labour, 25 June 1957 (entered into force 17 January 1959);
— Convention relating to the Status of Refugees. 28 Jaly 1951 (entered into force 22 April 1954);»
— Convention relating to the Status of Refugees, 31 Jan-uary 1967 (entered into force 4 October 1967);1
— ILO Convention concerning the Application of the Prin-ciples of the Right to organize and bargain collectively, 1 July
1949 (entered into force 18 July 1951);
— ILO Convention concerning Employment Policy, 9 July 1966 (entered into force 15 July 1966);
— Convention on the Political Rights of Women, 31 March 1953 (entered into force 7 July 1954);
— Geneva Convention for the Amelioration of the Condi-tion of the Wounded and Sick in Armed Forces in the Field, 12 August 1949);
— Geneva Convention for the Amelioration of the condi-tion of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949);
— Geneva Convention relative to the Treatment of the Prisoners of War, 12 Ai'gust 1949);
1 VVhile ratifying this convention, Turkey has added the following reservation and declaration:
"No provision of this Convention may be interpreted as granting to refu-gees greater rights than those accorded to Turkish citizens in Turkey". 2 The accession of Turkey to this Convention should be read with the
follow-ing reservation:
"The instrument of accession stipulates that the government of Turkey maintains the provision of the declaration made under section B of Article 1 of the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, according to vvhich it applies the Convention only to persons who have beeome refugees as a result of events occurring in Europe, and also the reservation clause made upon ratification of the Convention to the effect that no provision of this Convention may be interpreted as granting to refugees greater rights than those accorded to Turkish citizens in Turkey."
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— Geneva Convention relative to the Proteetion of Çivili an Persons in Time of War, 19 August 1949;
— ILO Convention concerning equal Renumeration for Menand Women Workers for Work of equal Value, 29 June 1951 (entered into force 23 May 1953);
— ILO Convention concerning Discrimination in Respect of Employment and Occupation, 25 June 1958 (entered into force 15 June 1960);
In addition, the International Convention on the Elimination of ali Forms of Racial Discrimination (entered into force on 4 Jannary 1969) was signed by Turkey, but has not yet been ratified.
This list consisting of 15 ratifications and one signature is rather short compared to some states in Europe: Norvvay 32 ratifications, Sweden 29, Federal Republic of Germany, 28, Denmark 28, United Kingdom 28; Yugoslavia 27, Finland 27. Other European countries in a more or less similar situation as Turkey are Greece (16 ratification, one signature), Portugal (14 ratifications and 2 signatures), Svvitzerland (14 ratifications). The list compares favourably only with some small states of Europe: Liechtenstein (6 ratifications), Monaco 7, San Marino 5, Vatican 7.
A comparison with the participant countries of the present colloquy gives the following picture:
Bulgaria, 20 ratifications
Greece, 17 and 1 signature
Iran, 17 55 | 55 Iraq, 19 55 55 Romania, 22 " 2 Syrian A.R. 19 U.S.S.R. 22 Yugoslavia, 27 Turkey, 15 » J 5!
But comparisons by mere figures are not enough since they do not reflect two important omissions on the part of Turkey:
"The International Covenant on Economic, Social and Cul-tural Rights" and "The International Covenant on Civil and Political Rights". Turkey has not eveıı signed these conventions. Considering that both allow a wide possibility of ratification under reservation, there can bs no reasanoble political excuse for this delay.
In the European context, Turkey has signed and ratified the European Convention of Human Rights and Fundamental Freedoms and four of its five protocols; but together with C-y-prus, Greece, Malta and Switzerland she has not signed the Pro-tocol No.4 prohibiting imprisonment for inability to fulfil a cont-ractual obligation and dealing with the liberty of movement, freedom to choose residence, the right of entry and the power of expulsion.
The Protocol No. 1 was ratified with a reservation for Ar-ticle 2 on the right to education, preserving the provisions of the Turkish law on the Integratioıı of Education in matters of reli-gious teaching.
Turkey, together with Cyprus, France, Greece and Malta, is among the five countries which have not made the declaratiosn necessitated by Article 25 of the European Convention for the recognition of the right of individual potition to the European commission and by Article 46 for the recognition of the com-pulsory jurisdiction of the European Court. She has not of course made the declaration stipulated in the Protocol No. 4, having not signed it at ali. Possessing no colony, Turkey had to malce no declaration of extension under Article 63 of the European Convention.
In the sphere of economic and social rights in the European context, Turkey has signed, but not yet ratified the Social Charter, but signed and ratified the Social Code. She has signed, but not yer ratified the Convention on the Legal Status of Migrant Wor-kers.
On the whole, judging from the lists of international ins-truments ratified or not ratified by Turkey, it is impossible to reach a clear-cut conclusion as to her "priorities" on the inter-national scene. This lack of pattern seems to coincide with the lack of priorities on the domestic scene and with the composite nature of the Turkish approach to human rights.
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III. The Teaching of Human Rights
Considering the immense interest in the subject and the pro-liferation of centers, ete. (the creation of the Human Rights Documentation Center at the istanbul Bar Association, the Human Rights Center at the Faculty of Political Sciences, Ankara University, the Human Rights Research and Documentation Center at the Public Administration Institute for Turkey and the Middle East, the founding of the Turkish National Section of Amnestry International, in the course of one year alone), the teaching of human rights has not yet reached at formal aca-demic recognition shared by ali institutions of higher learning.
The present teaching of the subject, taking various forms according to the curricula and staff of the institutions concerr.ed, can be best revievved under three headings:
a) Courses dircctly labeled "Fundamental Rights"Public
Liberties" or "Human Rights"
— Faculty of Political Science, Ankara University: an undergraduate course on "Fundamental Rights" for third year students (3 hours per week for a semester);
— School of Press and Broadcasting, attached to the same Faculty: an undergraduate course on "Fundamental Rights" for fourth year students (3 hours per week for a semester);
— Faculty of Political Science, Ankara University: an undergraduate course on "Human Rights at the International Level" for third year students of international relations (2 hours pek week for a semester);
— Faculty of Political Science, Ankara University: a graduate course on "International Protection of Human Rights" for the political science section of the graduate programme (2 hours per week for a semester);
— Faculty of Political Science, istanbul Academy of Eco-nomic and Commercial Sciences: an undergraduate course on "Fundamental Rights and Liberties" for third year public ad-ministration students (2 hours per week for a year);
— School of Political Science, istanbul Academy of Eco-nomic and Commercial Sciences: an undergraduate course on
"Fundamental Rights and Liberties" for third year public admi-nistration students (2 hours per week for a year);
— Institute of Journalism and Public Relations, Faculty of Economics, istanbul University: an undergraduate course of "Public Liberties" for third year students (1 hour per week for two semesters);
— Ankara Academy of Economic and Commercial Scien-ces: an undergraduate course on "Public Liberties" forfourth year students (2 hours per week for a year).
— Faculty of Education, Ankara University: an underg-raduate course on "Human Rights and Fundamental Democra-tic Institutions" for first year students (2 hours per week for a year), supplemented by a course on "The Rights of the Children and Related Institutions".
— Public Administration Institute for Turkey and the Middle East: a graduate course on "Fundamental Rights and Liberties" in the programme of specialization on public admi-nistration (4 hours a week fer a semester).
— Academy of Socia.1 Services: an undergraduate program-me on "Human Rights and Social Services" for second year students (2 hours per week for a year).
b) Courses of which a section is devoted to "human rights" — Courses on "general public law": In faculties of law, both in Ankara and istanbul, approximately a third of the course on "general public law" (political theory, history a.nd principles) given to third year students is devoted to "human rights".
— Courses on "Constitutional Law": The teaching of "constitutional law", a permanent feature of the curricula in Faculties of law and politi al science and in other institutions of higher learning in the field of social sciences, gives a promi-nent place to the subject of human rights, especially in relations with the topic of the judicial review of the constitutionality of laws.
— Courses on "International Lavv": The international proteetion of human rights is usually dealt with in the context
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of this course, the exeeption being the Faculty of Political Scien-ces, Ankara University, where the topic is treated as a separate course. There, another course on "The current problems of In-ternational Law" is presently dealing with "inIn-ternational judi-ciary", a subject closely related to the international proteetion of human rights.
— In many institutions of higher learning, parts of under-graduate or under-graduate seminars are also devoted to discussions on human rights: At the Faculty of Law, istanbul University, a seminar of "Fundamental Rights" and a workshop of "Judi-cial Revievv of Constitutionality and Fundamental Rights" are conducted by members of the chair for Constitutional Law. The topic is also discussed in seminars of public law. At the Fa-culty of Political Science, Ankara University an undergraduate seminar and a graduate seminar on "The Jurisprudence of the Constitutional Court" deal with "Fundamental Rights and Liberties". Similar seminars have bsen organized by the Faculty of Administrative Sciences, Middle East Technical University in its programme for master's degree in Public Administration and Political Science.
c) Courses indirectly dealing witlı "hıınıan rights"
İt goes vvithout saying that in sı<ch legal courses as "Inter-national Private Law", "Law of Communication and Informa-tion, "Penal Law", "Labour Law" and "Administrative Law", the topic of human rights iııevitably bscomes part and parcel of the teaching. On the other hand, courses on "International Re-lations", "Political Theory", "Philosophy of Law", "Social Policy" also deal with human rights. It is known that the course titled "The Question of Liberty" at the Philosophy Section of the University of Hacettepe places a great emphasis on the sub-ject of human rights as such.
lf a general evaluation is needed, it may not b; wrong to say that in spite of ali these endeavours, the teaching of human rights has not yet acquired the rigour and comprehensiveness of an independsnt discipline.
Perhaps rightly so. The many facets of the subj ect should and do attract seholars of various disciplines.
But there is certainly a need for closer contact and coordina-tion, better services of documentation and a more regular effort of periodical publication.
IV. Remarks on Regional Cooperation
Members of the present colloquy will certainly point out to the necessity of exchange of information and publications, mutual visits of researchers and teachers of human rights for short periods, organization of regular meetings and joint re-search projects, ete.
And certainly the Final Document of the International Congress on the Teaching of Human Rights organized by UNES-CO in September 1978 in Vienna is full of suggestions and recom-mendations in this respect.
But this present meeting, which is perhaps unique of its kind, should stress that suclı a cooperation will be much more fruitful if it acquires a content suitable to the particularities and problems of the region. For instance, the implications of the proposed new economic order on the question of human rights or the proteetion of ethnic and religious minorities in the region are concrete topics on which an exchange of views and an effort concrete topics on which an exchange of views and effort to find common solutions may not only be to the benefit of the countries in the region, but may at the same time be an indirect contribution to the question of human rights in its universal context. The co-existence of different ideologies in the region makes it possible in many cases to see the same problems from in many cases to see the same problems from several different angles.
